Prior Restraint

Definition

Prior restraint refers to government restrictions or prohibitions on speech or publication before the speech or publication occurs. It is a legal doctrine that places limits on the government's ability to censor or restrict expression before it is made public.

5 Must Know Facts For Your Next Test

1. The Supreme Court has generally held that prior restraints on speech are presumptively unconstitutional under the First Amendment.
2. Prior restraints are subject to the highest level of judicial scrutiny, known as strict scrutiny, which requires the government to demonstrate a compelling interest and the use of the least restrictive means.
3. Exceptions to the prior restraint doctrine include national security concerns, obscenity, and incitement to imminent lawless action.
4. The government can impose prior restraints on the press in certain limited circumstances, such as to prevent the publication of classified information that could threaten national security.
5. The doctrine of prior restraint is a key principle in protecting freedom of expression and preventing the government from censoring speech before it is made public.

Review Questions

• Explain the concept of prior restraint and how it relates to the First Amendment's protection of freedom of speech.
  • Prior restraint refers to government restrictions or prohibitions on speech or publication before the speech or publication occurs. The First Amendment protects freedom of speech, and the Supreme Court has generally held that prior restraints on speech are presumptively unconstitutional. This is because prior restraints give the government the power to censor expression before it is made public, which can have a chilling effect on free speech. The government can only impose prior restraints in very limited circumstances, such as to prevent the publication of classified information that could threaten national security, and these restrictions must be narrowly tailored and subject to the highest level of judicial scrutiny.
• Describe the exceptions to the prior restraint doctrine and the level of judicial scrutiny applied to these exceptions.
  • While the Supreme Court has generally held that prior restraints on speech are presumptively unconstitutional, there are a few exceptions to this doctrine. These exceptions include cases involving national security concerns, obscenity, and incitement to imminent lawless action. In these exceptional cases, the government's prior restraint on speech is subject to the highest level of judicial scrutiny, known as strict scrutiny. Under strict scrutiny, the government must demonstrate that the prior restraint is narrowly tailored to achieve a compelling government interest. This high bar ensures that the government does not abuse its power to censor speech and that any restrictions on expression are truly necessary and the least restrictive means available.
• Analyze the role of the doctrine of prior restraint in protecting freedom of expression and preventing government censorship.
  • The doctrine of prior restraint is a crucial principle in safeguarding the freedom of expression protected by the First Amendment. By presumptively prohibiting the government from censoring speech or publication before it occurs, the prior restraint doctrine prevents the government from wielding unchecked power to suppress ideas and information. This is important because prior restraints can have a chilling effect on free speech, as individuals may refrain from expressing themselves for fear of government censorship. The high level of judicial scrutiny applied to any exceptions to the prior restraint doctrine ensures that the government can only restrict expression in the most limited and compelling circumstances, such as to protect national security. Overall, the prior restraint doctrine is a vital safeguard against government overreach and a cornerstone of the First Amendment's guarantee of free speech.

Related terms

First Amendment:

The First Amendment of the U.S. Constitution protects the freedom of speech, the press, assembly, and the right to petition the government for redress of grievances.

Censorship:

Censorship is the suppression or prohibition of speech, public communication, or other information, usually by a government or other authority.

Strict Scrutiny:

Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws or government actions. It requires the government to prove that the law or action is narrowly tailored to achieve a compelling government interest.